Pevia v. Hill

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DONALD R. PEVIA, Plaintiff, v. COMMISSIONER OF CORR. WAYNE HILL, et al., Defendants.

Civil Action No. DLB-22-441

United States District Court, D. Maryland

March 28, 2023

MEMORANDUM

Deborah L. Boardman United States District Judge

Self-represented plaintiff and state prisoner Donald R. Pevia alleges that, in response to an administrative complaint he filed and, months later, during and after a search of his cell in which correctional officers found contraband, the defendants violated his equal access, equal protection, due process, and First and Eighth Amendment rights. ECF 1, at 5, 8, 10, 13. He filed this civil rights action pursuant to 42 U.S.C. § 1983 against Maryland Division of Correction Commissioner Wayne Hill, Warden Gregory Werner, Acting Warden Richard Roderick, Lt. Vaughn Whiteman, Acting Warden Jeff Nines Officer Smith, Warden Designee Keith Arnold, and the Secretary of Corrections.^[1]

On August 12, 2022, defendants former Commissioner of Correction Wayne Hill, Richard Roderick, Gregory Werner, Keith Arnold and Lt. Vaughn Whiteman filed a motion to dismiss, or in the alternative, for summary judgment. ECF 11. Pevia has not responded to the defendants' motion. Having reviewed the complaint, the defendants' motion, and accompanying exhibits, the Court finds that no hearing is necessary. See Loc. R. 105.6 (D. Md. 2021). The defendants' motion, treated in part as a motion to dismiss and in part as a motion for summary judgment, is granted.

I. Background

In March of 2020, Pevia, while incarcerated at North Branch Correctional Institution (“NBCI”) in Cumberland, Maryland, filed an administrative complaint, ARP NBCI-0505-20, regarding the denial of access to religious services. Pevia claims that when Roderick responded to the ARP, he committed perjury to justify his actions. ECF 1, at 13. Specifically, Pevia takes issue with Roderick's statement that all religious services were cancelled because of COVID-19. Pevia claims that services were not curtailed until March 19, 2020, and his grievance was filed two weeks earlier, on March 5, 2020. Id. Pevia claims that Roderick violated the “officers code of conduct.” Id. Pevia contends that he followed all the proper procedures in pursuing his claim, but it was dismissed for not having been filed in the proper time frame to “cover up the defendants' actions.” Id. Pevia argues that Roderick committed perjury to prevent him from properly exhausting his remedies in violation of his right to due process and in retaliation for having previously filed civil complaints. Id. at 14.

In a separate incident on December 9, 2020, while conducting a routine check of Pevia's cell, Whiteman and Officer Lambert smelled a strong odor of fruit. ECF 1, at 5; ECF 11-3, ¶ 2 (Whiteman Decl.); ECF 11-4, ¶ 3 (Lambert Decl.). They found a bag of fruit, which Pevia's cellmate admitted was his. ECF 1, at 5; ECF 11-3, ¶ 4; ECF 11-4, ¶ 3. The officers decided to search the cell after the bag with fruit was removed because the cell still smelled of ripe fruit. ECF 11-3, ¶ 5; ECF 11-4, ¶ 4. During the search, Whiteman found a transparent bag with fruit and liquid under the bunk which smelled rotten but did not appear to have fermented. ECF 11-3, ¶ 6; ECF 11-4, ¶ 5. Whiteman also found a pen with a “sharpened staple” attached to it. ECF 1, at 5; ECF 11-3, ¶ 7; ECF 11-4, ¶ 6; ECF 11-2, at 2. Pevia admitted the pen with the sharp tip was his and explained that he used it to cut designs in cardboard to make cards. ECF 1, at 5. Whiteman perceived the pen with the sharp tip to be a weapon, reported a weapon violation, and issued a notice of inmate rule violation to Pevia. ECF 11-2, at 2-3; ECF 11-3, ¶¶ 8, 10. Pevia was charged with violating Rule 105 - possess, use, or manufacture a weapon. ECF 11-2, at 2-3.

Pevia complains that it was unfair for him to receive a rule violation when his cellmate was not issued a rule violation for the liquid and fruit combination found in the cell. ECF 1, at 6. Whiteman and Lambert explain that they did not issue the cellmate a rule violation notice because the fruit in the bags had not fermented and therefore could not be considered alcohol for rule violation purposes. ECF 11-3, ¶¶ 6, 11; ECF 11-4, ¶ 8.

After the contraband was found in the cell, Pevia was handcuffed and escorted from his cell. ECF 1, at 5; ECF 11-4, ¶ 7; ECF 11-3, ¶ 9. According to Pevia, as they walked down the tier, Whiteman held the “weapon” over his head and said, “You gotta leave this religious shit alone in court,” which Pevia took to refer to previous civil rights cases Pevia had filed against Whiteman. ECF 1, at 5. Whiteman denies saying anything like that and denies retaliating or discriminating against Pevia. ECF 11-3, ¶¶ 12, 15. In his ARP appeal, Pevia complained that Whiteman retaliated against him because he had challenged his authority. ECF 1-2, at 5.

Pevia claims that when his personal property was packed and inventoried, his fan was missing and he was not issued the proper confiscation form for it. ECF 1, at 5. Pevia's property was inventoried on six occasions between July 19, 2019 and December 9, 2020, and a fan was not listed on any of those inventories. ECF 11-2, at 22-30. Pevia's July 18, 2019 property inventory, in contrast, listed a fan. Id. at 31. Pevia states that he gave that fan to another inmate when he was assigned to segregation, but he does not say when this occurred. ECF 1-3, at 3. Whiteman denies seeing a fan among Pevia's property on December 9, 2020, and he specifically denies removing a fan from Pevia's property. ECF 11-3, ¶ 13.

Pevia was served a written notice of the inmate rule violation charging him with the Rule 105 weapons violation. ECF 11-2, at 2-4. He did not request any evidence be presented at the hearing, and he declined to appear at the hearing, instead opting for a waiver and plea agreement. Id. at 4-5, 13; ECF 1, at 6. The hearing officer considered Pevia's plea agreement and the statement contained in the notice of rule violation and found Pevia guilty. Id. at 9, 14. Pevia received a copy of the hearing officer's written decision as well as the Warden's affirmation of the decision. Id. at 12-17, 18-20.

On February 7, 2021, Pevia filed a grievance regarding the dismissal of his complaint concerning the weapons charge and confiscation of his fan, including a claim that Whiteman retaliated against him for filing civil rights complaints. ECF 1, at 8. Pevia claims that the defendants lied in their dismissal when they denied that Whiteman took a fan from Pevia's cell and complains that they refused to preserve the video footage as evidence. Id. Pevia contends that the “Defendants allow and permit NBCI staff to do as they please due to [] ‘security issues' of reserving inmates videos. But if its beneficial for NBCI staff its not a security threat.” Id. Whiteman was not responsible for investigating Pevia's complaint regarding his fan. ECF 11-3, ¶ 14.

On April 7, 2021, Pevia had a hearing before the Inmate Grievance Office (“IGO”) on another matter. ECF 1, at 10. Pevia was placed in a three-piece waist chain and held in a strip cage for two and a half hours before the hearing. Id. In Pevia's view, this is a tactic used to discourage inmates from going forward with their hearing. Id. Department of Public Safety and Correctional Services (“DPSCS”) policy provides that restraints “shall be used” when moving a disciplinary segregation inmate within the institution. See https://www.dpscs.state.md.us/pia/index.shtml DOC 110.0006 Disciplinary Segregation (last visited Feb. 8, 2023). NBCI's policy for IGO proceedings provides that “segregation inmates shall be placed in three-piece restraints.” ECF 11-2, at 33. NBCI's policy regarding restraint use during IGO hearings was published to inmates by distribution to Inmate Bulletin Boards. ECF 11-2, ¶ 23 (White Decl.).

At the time of the April 7, 2021 hearing, Pevia was a maximum-security inmate assigned to disciplinary segregation. ECF 11-2, at 34. During the hearing, Pevia was forced to remain in three-piece restraints. ECF 1, at 10. He claims the restraints prevented him from taking notes or presenting evidence properly or viewing his notes or case law. Id. While Pevia remained restrained, staff representatives were permitted to move freely and present their case. Id.

Pevia filed this lawsuit on February 18, 2022. His complaint, liberally construed, includes claims for violations of his First and Eighth Amendment, due process, equal protection, and equal access rights.

II. Standard of Review

The defendants move to dismiss the complaint for failure to state a claim or alternatively for summary judgment. Under Rule 12(b)(6), a party may seek dismissal for failure “to state a claim upon which relief can be granted.” Robertson v. Anderson Mill Elementary Sch., 989 F.3d 282, 290 (4th Cir. 2021) (quoting Fed.R.Civ.P. 12(b)(6)). To survive the challenge, the opposing party must have pleaded facts demonstrating it has a plausible right to relief from the Court. Lokhova v. Halper, 995 F.3d 134, 141 (4th Cir. 2021) (citing Ashcroft v. Iqbal, 556 U.S. 662 678 (2009)). A plausible claim is more than merely conceivable or speculative. See Holloway v. Maryland, 32 F.4th 293, 299 (4th Cir. 2022). The allegations must show there is “more than a sheer possibility that the defendant has acted unlawfully.” Int'l Refugee Assistance Project v. Trump, 961 F.3d 635, 648 (4th Cir. 2020) (quoting Iqbal, 556 U.S. at 678)). But the claim does not need to be probable, and the pleader need not show “that alternative explanations are less likely” than their theory. Jesus Christ is the Answer Ministries, Inc. v. Balt. Cnty., Md., 915 F.3d 256, 263 (4th Cir. 2019) (quoting Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473,...